One of the most respected judges in the history of the Subcontinent, Justice AR Cornelius, had laid down a principle half-a-century ago that neither the Speaker National Assembly nor the Chief Election Commissioner could have the jurisdiction to question the constitutionality of a court order.

According to the constitutional position that emerged after Tuesday’s historic verdict could be explained in two points as follows;

1- If a citizen or a member of parliament will move a reference regarding disqualification of a member of parliament because of any sub-clause of Article 63(1), the Speaker National Assembly or of a provincial assembly or the chairman Senate, as the case may be, will have the power to decide whether ‘a question of disqualification has arisen or not’ and if he/she decides that a question has arisen, he/she will send the reference to the Election Commission of Pakistan (ECP) for final decision.

2- However, if some superior court will give some judgment which will establish that a member of parliament has committed some things which fall under the disqualification given in sub-clauses of the Article 63(1) and such a decision attains finality, he will stand disqualified and the court could order directly to the ECP to issue a notification of disqualification of that member. In this case, the process of removeability given in Article 63(2) and 63(3) will not be followed and these two sub-articles will be relevant only once a the question will arise.

Senior legal and constitutional expert SM Zafar, while talking to The News, said that the decision of the Supreme Court has come up in a specific situation when the Speaker National Assembly had rejected an apex court judgment and halted the process defined in the Constitution. “In a broader spectrum, the Supreme Court can give this judgment in prevailing circumstances,” SM Zafar said. Zafar said that interpretation could not be extended more than this.

Independent legal and constitutional expert Babar Sattar was of the view that after Tuesday’s judgment, it seemed that in its detailed judgment the Supreme Court would hold that after a Supreme Court judgment attained finality, there will be no role of Speaker and role of the ECP will be restricted to issuance of notification of disqualification of a member.

Babar said only after detailed judgment, it could be determined that to what extent Tuesday’s judgment had diminished the role of Speaker and ECP in case of any judgment of a court of competent jurisdiction. Babar said that according to his view, it would have been better if the Supreme Court hadn’t disqualified the prime minister directly and sent the issue to the ECP.

The Article 63(1)(g) reads as; (1)A person shall be disqualified from being elected or chosen as, and from being, a member of the parliament, if:- (g) he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to … the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary … unless a period of five years has elapsed since his release. Article 63(2) reads as; (2) If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and should he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission. While article 63(3) reads as; (3) The Election Commission shall decide the question within ninety days from its receipt or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.

Fifty years back, the judgment titled Fazullah Qadir Ch vs M Abdul Haq preserved in PLD 1963 (Supreme Court) on page number 486, shows a five-member bench of Supreme Court, headed by Justice AR Cornelius, had discussed the scope of Speaker’s powers of reference in case of disqualification of a member, and that of Chief Election Commissioner to pronounce his opinion on such reference, along with a few other issues, including disqualification of ministers in General Ayub’s cabinet. The other members of the bench were also great names of Pakistan’s judicial history, including Justice SA Rehman, Justice Fazle Akber, Justice BZ QaQaous and Justice Hamoodur Rehman.